William & Mary Law Review
Volume 33 | Issue 3
Article 6
Does the First Amendment Protect More than Free
Speech?
Stephen L. Carter
Repository Citation
Stephen L. Carter, Does the First Amendment Protect More than Free Speech?, 33 Wm. & Mary L. Rev.
871 (1992), http://scholarship.law.wm.edu/wmlr/vol33/iss3/6
Copyright c 1992 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
http://scholarship.law.wm.edu/wmlr
DOES THE FIRST AMENDMENT PROTECT MORE THAN
FREE SPEECH?
STEPHEN L. CARTER*
I.
THE FIRST AMENDMENT ACCORDING TO YALE
It is the peculiar province of the First Amendment to belong
to everyone, to be a part of every cause, to be cited on both
sides of every legal issue and not a few political ones. Back in
1977, in the spring of my first year of law school, I had my initial
encounter with what one of my professors called "the Yale theory
of the First Amendment." Because I was a student at Yale, this
encounter with a First Amendment theory naturally took place
not in the introductory constitutional law course, which I had
taken in the fall, or even in the course on freedom of expression,
in which I was then enrolled, but in Property.
We were discussing a case that involved, as I recall, someone
who had hung some washing to dry on an outdoor clotheslinea violation, it seemed, of some zoning regulation. The professor
led us through the mysterious twists and turns of zoning law,
and our every effort to find a defense for the unfortunate zoning
violator ended in good-natured disaster. When we had exhausted
our meager supply of ideas gleaned from the previous night's
reading, the professor looked out over the room and said, "But
nobody is making the obvious argument." We looked to one
another in confusion and not a little terror, fearing that one of
us would be called upon to supply the obvious argument and
found wanting.
We need not have worried. The professor was by that time
sufficiently frustrated that he had no further patience with the
Socratic method. "This is Yale," he reminded us, "so naturally,
the hanging of clothes on the line, like everything else, is protected by the First Amendment."
Naturally! Why not? The clothes, one might say, are a work
of art, spoiling the solitude of the neighborhood that zoned them
* William Nelson Cromwell Professor of Law, Yale University. B.A., Stanford University, 1976; J.D., Yale University, 1979. An earlier version of this paper was presented at
faculty workshops at Yale Law School, Cornell University Law School, and Boston
University School of Law. I have had the benefit of outstanding research assistance by
Carla Jones of the Yale Law School class of 1993.
WILLIAM AND MARY LAW REVIEW
[Vol. 33:871
out, rippling subtly in the wind in order to make a statement
about the oppressive regimentation of contemporary American
society. Better still, the hanging of the clothes is a protest-a
speech-act-a way of battling against the complexity of what
should be simple-washing clothes. Best of all, the hanging of
the clothes is a protest against the law itself. A protest! Classic
First Amendment activity! Why not? The best way of protesting
an unjust law is to break it and then, ignoring traditional theories
of civil disobedience that required acceptance of punishment, to
go to court and argue that the law is unconstitutional. At Yale
back in the 1970's, and I suppose elsewhere as well, it did not
seem a particularly fanciful argument to suggest that if one
breaks the law with the intent to protest it, then the act of
breaking the law is always protected by the First Amendment.'
In other words, crimes committed for political reasons, notwithstanding the absence in American jurisprudence of a category of
political prisoner, cannot be prosecuted.
Everything is protected by the First Amendment. This might
sound like the sort of wild cynicism in which professors regularly
indulge and that the public regularly ignores, but think for a
moment. From the sea of law review articles that I have read
over the past decade, I seem to recall authors insisting that the
First Amendment protects drug use, sexual privacy, false advertising, scientific research, reproductive freedom, the theft of
government documents . . .and the list goes on.
Yet, at the same time that the Free Speech Clause serves as
the prop that is cited in support of a sparkling constellation of
rights that are difficult to derive from the Amendment's text,
structure, or history, the other freedoms that the First Amendment protects are falling into desuetude. I refer specifically to
the Free Press Clause, the Free Exercise Clause, and the Free
Petition Clause. As the reach of the Free Speech Clause has been
expanded, the reach of these other clauses has been restricted.
At the outset, looking at the language of the First Amendment
might be useful, for law professors all too rarely take the time
to study the text of the document that they claim to be construing. What the First Amendment actually says is this: "Congress
shall make no law respecting an establishment of religion, or
1. The literature of the era strongly implied this argument. See, e.g., James E. Leahy,
"Flamboyant Protest," the FirstAmendment and the Boston Tea Party,36 BROoK. L. REV.
185 (1970); Lawrence R. Velvel, Protecting Civil Disobedience Under the FirstAmendment,
37 GEO. WASH. L. REV. 464 (1969).
1992]
FREE SPEECH PROTECTION
873
prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of
grievances. '2 Because the rights of assembly and petition are
joined with "and," whereas the rights of speech and press are
joined with "or," one might usefully envision the First Amendment as containing four clauses: one on religion, one on speech,
one on the press, and one on assembly and petition. If they are
in order of importance, religious freedom comes first; if they are
not, then no textual basis supports the establishment of a hierarchy among them.
At a conference not long ago, I heard two panelists who were
supposed to be debating one another end up agreeing that the
Free Exercise Clause of the First Amendment might well have
been made irrelevant by the Privileges or Immunities Clause3 of
the Fourteenth Amendment. That is an interesting proposition,
and one that is at least supported by the "last-in-time" theory of
constitutional adjudication.4
I want to discuss a similar but more troubling anomaly: the
possibility that notwithstanding the plain language of the text,
the rights enumerated in the First Amendment exist in hierarchy
after all, because judicial decisions have rendered the other three
clauses essentially superfluous in light of the Free Speech Clause.
In the hierarchy, as the courts (and most of the commentators)
seem to envision it, the right to freedom of speech is paramount
and protected in extraordinary ways, sheltering a range of activities having little to do with speaking. 5 The right to freedom of
the press lurks somewhere behind the right to free speech,
protecting very little, if anything, that is not protected by the
Free Speech Clause and not nearly so central to our democracy.6
The freedom of religion is clearly a third-tier right, subject to
reasonable regulation of many sorts. 7 Finally, the right to assemble and petition is all but a dead letter, protecting nothing in
particular.8
2. U.S. CONST. amend. L
3. "No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States...
U.S. CONST. amend. XIV, S 1, cl.
2.
4. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (holding that the Fourteenth
Amendment, because enacted later in time than the Eleventh, necessarily abrogated the
immunity from suit that the earlier amendment conferred).
5. See infra notes 24-31 and accompanying text.
6. See infra notes 50-51 and accompanying text.
7. See infra notes 32-47 and accompanying text.
8. See infra notes 52-56 and accompanying text.
874
WILLIAM AND MARY LAW REVIEW
[Vol. 33:871
I would suggest that although some cases do not fit the rule,
one might say that judicial interpretation has made the Free
Press, Free Exercise, and Free Petition Clauses all but redundant
in light of the Free Speech Clause. What I mean by this is that
the principal activities protected under the other clauses would
be protected even if the Free Press, Free Exercise, or Free
Petition Clauses did not exist. At the same time, the public has
increasingly clamored for, and the courts have shown signs that
they will allow, the restriction of speech itself on the ground
that allowing the speech will harm the community's sense of self
in ways that its members have the right to prevent Indeed, for
better or for worse (mostly, in my view, for worse), I suspect
that First Amendment jurisprudence is moving in the direction
of community control of speech.
I argue that both trends might be explained by pointing to
the collapse of certain assumptions involving the nature and scope
of federal authority that probably undergirded the original impetus for the First Amendment. In the particular case of the
shift toward more community control, it may be that a worried
public is trying hard to supply the homogeneity of moral vision
that characterized the communities of governance, as I shall call
them, in which the Founders might have imagined that freespeech activities would transpire.
II.
THE ROLE OF FREE SPEECH
In law schools, we teach-or we are taught-that free speech
is central to our democracy, that unfettered political debate is
essential, and that any restriction on what one can say pushes
us closer to the abyss (which seems to be displacing the slippery
slope as the metaphor of choice). For a time, in the 1970's and
1980's, literature on the First Amendment was dominated by
theories about self-actualization, a trend that led to the bromide
about everything being speech. 10 Those theories are still around,
but my impression is that they are fading from favor, replaced
once more by the traditional notion of speech as a means toward
self-government.
Of course, there is no inherent reason that the freedom of
speech, especially as that freedom is understood in the United
States, must be considered either indispensable for democracy
9. See infra notes 68-81 and accompanying text.
10. See supra note 1 and accompanying text.
1992]
FREE SPEECH PROTECTION
or absolute in its reach. We might think that our idea of freedom
is the best one, but that is not the same as saying that it is
impossible to enjoy the fruits of democracy without endorsing it.
Think for a moment of all the countries in the world that do not
protect free speech as we do; I would estimate that some 250 of
them exist, which is to say, everybody else on the planet. The
refusal of all of these countries to learn from our example might
be evidence of the inherent moral superiority of Americans as a
people, or it might be evidence that matters are a bit more
problematic than the language of absolutism suggests.
My thesis is threefold: first, our First Amendment jurisprudence has fallen into a muddle; second, the muddle has two
causes, each one representing a tension of life in contemporary
America; third, these tensions are, in turn, in very substantial
tension with each other.
Two failures cause the muddle. The first of the failures is the
failure of the Founding Generation's critical assumptions about
the nature of the national entity they created-a failure, I shall
argue, that creates pressures to broaden the scope of many
constitutional rights, surely First Amendment rights among them.
The second failure is the failure of a long-held mythos about the
nature of community and the possibility of democracy within a
community, which creates a countervailing pressure to limit certain aspects of First Amendment rights in the name of community
interests, as expressed by the relevant governing entity.
These failures are, as I have said, in considerable tension with
each other. The first failure pushes toward expansion of rights
and the second toward contraction, but that is a bit oversimplified. What I would say, rather, is this: the failures of the different
assumptions of the Founding Generation have led to pressures
for different models of the First Amendment, and those models
are in tension. I call these two models (without claiming any
originality in the titles) the Free Expression model and the
Community Control model. The Free Expression model generally
allows the statement of views, even symbolically, that alarm,
upset, or disgust the larger body politic; the Community Control
model supposes that local bodies politic should be able to regulate
expressions of precisely that sort.
These two models tend to dominate our First Amendment
jurisprudence and not only on the matter of free speech. The
Supreme Court uses both models, albeit at different times, although the Free Expression model traditionally dominates.1 In
11. See infra notes 21-31 and accompanying text.
WILLIAM AND MARY LAW REVIEW
[Vol. 33:871
recent years, the Court backed away from the Free Expression
model and gave somewhat freer rein to the Community Control
model, leading some to righteous cries of outrage. 12 I shall argue,
however, that an unspoken harmony exists between the models
as the Court has actually applied them. 13
I hasten to add that these two models obviously do not sweep
everything into their ambit; some cases do not fit into either.
However, most of our First Amendment jurisprudence can be
explained by the models, and there are sensible (although not
noncontroversial) theoretical reasons for that.
A.
Word on Method
To understand my views, one must first know something about
my constitutional theory. I dispute the legal legitimacy of constitutional decisions that are not closely tied to the text, structure, and history of the document itself. When I refer to legal
legitimacy, I have in mind the obligation of obedience to a decision
as well as its force as precedent. I understand that many smart
theorists believe that legitimacy can come from other, better
sources. Although I respect their views, I am not persuaded by
them. I suppose that my approach is a bit old-fashioned, but
there it is. 1 4 I will not here go into the reasons for my preference,
which I have discussed elsewhere. 15 I mention the point because
it is critical to understanding what follows.
Given my methodological preference, I am reluctant to express
strong views on constitutional provisions when I have not had
the opportunity to study their history in detail. The First Amendment is such a provision; I currently know little of its history,
and what I do know is mostly from secondary sources. What I
say should therefore be treated as a very preliminary assessment
and not as a settled conclusion.
12. See infra notes 68-81 and accompanying text.
13. See infra notes 62-81 and accompanying text.
14. For some thoughtful expressions of the reasons for my caution, see, for example,
H. Jefferson Powell, The Original Understanding of OriginalIntqnt, 98 HARV. L. REV. 885
(1985) and Suzanna Sherry, The Founders' Unwritten Constitution,54 U. CHI. L. REV. 1127
(1987).
15. A reader who is a glutton for punishment might examine, for example, Stephen L.
Carter, ConstitutionalImproprieties:Reflections on Mistretta, Morrison, and Administrative Government, 57 U. CHI. L. REV. 357 (1990); Stephen L. Carter, The Dissent of the
Governors, 63 TUL. L. REV. 1325 (1989); and Stephen L. Carter, ConstitutionalAdjudication
and the Indeterminate Text: A PreliminaryDefense of an Imperfect Muddle, 94 YALE L.J.
821 (1985).
1992]
FREE SPEECH PROTECTION
Still, it would be a mistake to think about the original understanding of the First Amendment as something entirely apart
from the original understanding of the structure of the federal
government and the scope of federal authority. 16 As devised in
1787, the original plan called for a federal government of limited
and delegated authority; the principal lawmaking bodies in the
new nation were to be the states themselves, acting in -their
sovereign capacities. Indeed, one argument that was pressed
frequently against the addition of a bill of rights to the Constitution was that the Framers had not delegated to the federal
government the power to do the things against which a bill was
commonly supposed to protect. The explicit protection of the free
press from congressional restriction, for example, was opposed
by some Federalists precisely on the ground that the national
government had no power to regulate the press.
Because the First Amendment (like the entire Bill of Rights)
was adopted against a background that presumed a limited space
for the exercise of federal legislative power, it is useful to think
about the consequences for the original understanding if the
underlying assumption fails. The reason that it is useful to think
about these consequences is that the underlying assumption has
failed. The breadth and intrusiveness of federal authority have
grown far beyond what the Founders anticipated. The Interstate
Commerce Clause has grown from its relatively humble beginnings to a general police power. 1'7 The states have eroded as
independent sovereignties, principally because, as the events
leading up to the Civil War demonstrated, the idea of a union of
free and independent entities was unrealistic.
The Fourteenth Amendment, of course, has been the greatest
force in altering the original expectation about the relative status
of the federal and state sovereignties' 8 By the terms of the first
16. See Stephen L. Carter, Originalism and the Bill of Rights, 15 HARV. J.L. & PUB.
POL'Y 141 (1992).
17. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (holding
that the Civil Rights Act can be applied to a hotel because it involves interstate travelers,
and Congress has the right to regulate interstate commerce); Katzenbach v. McClung,
379 U.S. 294 (1964) (holding that the Civil Rights Act applies to a restaurant serving food
that traveled through interstate commerce).
18. For the argument that the events leading to the adoption of the Fourteenth
Amendment constituted a constitutional revolution not unlike the Founding and therefore
necessarily altered the proper understanding of what had gone before, see Bruce A.
Ackerman, ConstitutionalPolitics/ConstitutionalLaw, 99 YALE L.J. 453, 488-89 (1989) and
Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013,
1065 (1984).
878
WILLIAM AND MARY LAW REVIEW
[Vol. 33:871
section of the Amendment, Americans became citizens not only
of their own states but also of the United States. By the terms
of Section One in concert with Section Five, the federal government suddenly shed its mantle as a creature of the states and
became instead the protector of its citizens, the citizens of the
United States, against the predations of the citizens' own formerly sovereign states. From then until now, state power has
continued to wane (despite a brief flowering under the weakly
conceived federalism doctrine of National League of Cities v.
Usery19), and federal power has continued to grow. That is why
I contend that the original assumptions of the federal government
as a creature of the states and as an
entity with limited, delegated
20
power have essentially collapsed.
The collapse of the original assumptions about the nature of
federal authority necessarily affects the original assumptions
about the amendments designed to limit that authority. If the
entity that we now call the federal government is not, after all,
substantially continuous with the entity that the Founders thought
they were regulating, it becomes difficult to know what to make
of their original understanding. It is precisely this difficulty, I
suggest, that has led our First Amendment jurisprudence into
the muddle that now exists. To see why this is so, it is worth
considering in detail the dominant Free Expression model of the
First Amendment and then assessing the rise of the Community
Control model. Both models, I argue, are related to the collapse
of the original assumptions, as both seek to respond to it; however, the two models emphasize different aspects of the original
understanding to strike a new balance on the constitutional
protections of speech, press, religion, and assembly.
B. The Dominant Model: Free Expression
The Free Expression model presupposes the necessary link
between the democratic ideal and a broad expressive right. 21 At
19. 426 U.S. 833, 840-52 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528, 531 (i985).
20. I hasten to add that I am simply reporting the collapse of the original assumptions,
but my report should not be taken to imply that I mourn their passing. Although a
strong national government has its problems, and we have seen many of these in action,
the failure of the original assumption of limited federal authority and of the conception
of the federal government as a creature of the states generally has been to the good.
21. See, e.g., Thomas I. Emerson, Toward a General Theory of the First Amendment, 72
YALE L.J. 877 (1963); Donald Meiklejohn, Public Speech and the First Amendment, 55 GEo.
L.J. 234 (1966).
1992]
FREE SPEECH PROTECTION
879
the same time that the other freedoms in the First Amendment
seem to have been, as I shall explain, reduced in scope, the
freedom of speech has been read broadly to encompass a good
deal more than simply speaking. So well established is this trend
that Robert Bork, once known as the principal apostle of the
notion that the freedom of speech should be limited to the
"political" realm because of its connection with self-government, 22
has abandoned the idea and pronounced it unworkable.23
One who doubts that the understanding of what constitutes
speaking has undergone a steady enhancement should simply
think of the examples. The expenditure of money has been
protected as speech in such cases as Buckley v. Valeo and First
National Bank v. Bellotti.s This argument has a certain charm,
26
for, in this day and age, how can we speak without spending?
Freedom of association has been protected as a concomitant of
speech, for how can we speak effectively without first organizing?
And of course, symbolic gestures continue to be protected, although tenuously, as, for example, in the case of Texas v. Johnson,27 in which the Court sustained by a vote of five-to-four the
right to express an opinion by burning the American flag.2 Again,
22. Robert H. Bork, Neutral Principles and Some FirstAmendment Problems, 47 IND.
L.J. 1, 24-35 (1971).
23. For Judge Bork's discussion of his own change of mind, see SENATE COMM. ON THE
JUDICIARY, Nomination of Robert H. Bork to be an Associate Justice of the United States
Supreme Court, S. EXEC. REP. No. 7, 100th Cong., 1st Sess. 56 (1987) (quoting Bork's
statement that he would "gladly" accept Supreme Court decisions protecting nonpolitical
expression) and ROBERT H. BoRx, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION
OF THE LAW 333 (1990).
24. 424 U.S. 1, 39-59 (1976); see also Federal Election Comm'n v. National Conservative
Political Action Comm., 470 U.S. 480, 493-96 (1985) (holding that a statute making it a
criminal offense for an independent "political committee" to expend more than $1000 to
further the election of a candidate receiving public financing violates the First Amendment).
25. 435 U.S. 765, 768, 775-95 (1978) (holding that a statute prohibiting corporations from
making contributions to influence voters on questions not "materially affecting any of
the property, business or assets of the corporation" violates the First Amendment).
26. Compare Stephen L. Carter, Technology, Democracy, and the Manipulationof Consent, 93 YALE L.J. 581 (1984) (arguing that the critical problem for contemporary First
Amendment is that those with wealth have access to the media, and those that do not
have wealth cannot communicate their ideas) with MARK V. TUSHNET, RED, WHITE, AND
BLUE 103-06 (1988) (suggesting that American politicians survive by creating favorable
economic conditions, and that they create these conditions by catering to the needs of
business and discounting the needs of workers) and Steven Shiffrin, Government Speech
and the Falsification of Dissent, 96 HARV. L. REv. 1745 (1983) (discussing Mark Yudof's
book which examines whether the government, as an institution with massive wealth,
has the ability to unduly influence the marketplace of ideas).
27. 491 U.S. 397 (1989).
28. Id. at 420.
WILLIAM AND MARY LAW REVIEW
[Vol. 33:871
the argument is apparent, for how can one speak effectively
without using what I might call, in my guise as a teacher of the
patent law, the "best mode"?9
Of course, in any sense that accords with our ordinary understanding of such things, characterizing any of these cases as
actually being about "speech" is difficult, and a great deal of
sophisticated but ultimately unconvincing arguments can be
avoided by conceding that point. If these cases are not really
protecting speech, how can they be justified? I would suggest
that perhaps-and I emphasize the conditional-perhaps they can
be explained as a response to the collapse of the assumptions
about the nature of federal authority. With the shift of massive
power to the federal government, the thin shield that the Founders probably imagined when they wrote the First Amendment
might no longer be sufficient to permit the robust debate on
matters of public moment that they plainly anticipated. The
expansion of the understanding of what counts as speech thus
might represent an effort to restore the balance between citizen
speech and sovereign power that the original design anticipated.
This justification, however, contains a subtle but important
flaw. The trouble is that most of the leading cases involving
expansive readings of the meaning of "speech" are cases involving
the authority of the states or local government entities, 30 not the
power of the national government. If, as I have suggested, the
states are weaker, not stronger, than the original plan anticipated, it is not immediately clear why the citizen's rights against
these weak entities need enhancement. Indeed, when one considers that the original design was clearly intended to preserve
state power to limit speech, the argument becomes, if anything,
even more attenuated.
The flaw is not unanswerable, but the answer is not simple.
One must begin by assuming that the First Amendment-or, at
least, the protection for freedom of speech-is one of the rights
(or, if one prefers, the privileges or immunities) incorporated
through the Fourteenth Amendment to apply against the states.
29. It may be that the Justices are preparing to retreat from the protection of symbolic
speech, at least if the future is portended by the Court's recent decision that nude
dancing, even when not obscene, may be banned if offensive to the community. See Barnes
v. Glen Theatre, Inc., 111 S. Ct. 2456, 2460-63 (1991).
30. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (holding that the state could not
prosecute a person for burning an American flag); Cohen v. California 403 U.S. (1971)
(holding that it was a violation of the First Amendment for the state to prosecute a
person for wearing a jacket bearing the words "fuck the draft" in the courtroom).
1992]
FREE SPEECH PROTECTION
One can then at least imagine the possibility (I confess that I
have not yet come to an assessment) that the constitutional rights
of citizens against the state and federal sovereignties should be
equivalent-that this is the very meaning of incorporation. Thus,
if a particular regulation of speech would not be permissible were
Congress to do it, it would not be permissible for a state to do
it either.
One might believe that this is obviously the significance of
incorporation, but that is not quite so, once one considers my
principal thesis. If the reason that a right exists against the
federal government is the collapse of the assumption of limited
federal authority, the same reason cannot possibly apply to the
regulation of speech by the states. Consequently, the move to
apply all rights against the states simply because they exist
against the federal government is, in this instance, a rather
unconvincing formalism and likely to founder on almost any
counterargument. Of course, escape hatches exist: one might, for
example, follow Bruce Ackerman up the ladder to a wonderful
world in which the Civil War and Reconstruction rewrote the
Constitution; for then the expansion of the freedom of speech
necessary to check enhanced federal power is treated like an
amendment to the original text of the First Amendment and,
through incorporation, applies without any need to work through
all of the reasons.3 1 At that point, however, we have reached
rather esoteric regions of legal reasoning, leaving the vaguely
dissatisfied sense that maybe, just maybe, the expansion of the
speech right is on shaky ground.
III.
THE CONTRACTION OF RIGHTS
No matter which theory is used to explain the expansion of
the right to free speech, explaining the contraction of the rest
of the rights in the First Amendment is difficult. Although they
are sometimes forgotten, the Amendment contains three other
rights: the right to free exercise of religion, the right to freedom
of the press, and the right to freedom of assembly and petition.
Nothing in the text suggests a hierarchy in which these are
subordinated to the right of free speech.
Yet, the Supreme Court, with rare exception, has treated each
of these other rights as adjuncts to, or perhaps variations on,
31. See supra note 18.
WILLIAM AND MARY LAW REVIEW
[Vol. 33:871
the freedom of speech. By this I mean that these three additional
clauses have been given very little content independent of the
content of the Free Speech Clause. A claim to a right under one
of the other clauses is most likely to succeed when it resembles
one of the rights protected by free speech and is least likely to
succeed when it is very different.
A.
The Free Exercise Clause
Consider first the Free Exercise Clause. The rights that the
clause protects traditionally have been strongest when they looked
like speech. Courts have protected, for example, the right to
proselytize or solicit contributions, 32 the right to give sermons
without a license,33 and the right to meet and worship without
regard to state permission.3 4 All of these are rights that nonreligious groups may exercise under the Free Speech Clause, except
that they will then be thought of as fund raising, public speaking,
and assembling or organizing.
To be sure, the Free Exercise Clause has been the vehicle for
some very un-speech-like protections, particularly the insulation
of the Old Order Amish from compulsory education laws for their
children in Wisconsin v. Yoder 3 and a series of cases requiring
unemployment benefits to be paid to people who are discharged
from private employment because their religious practices or
beliefs will not allow them to do their employers' bidding.3 These
cases, however, are at best small exceptions to a general trend.
No group other than the Amish has been given so broad an
exemption from generally applicable laws, and were the Yoder
case to arise today, it is not at all clear that the outcome would
be the same.3 7 The lower courts, moreover, have struggled un32. Cantwell v. Connecticut, 310 U.S. 296, 305-07 (1940).
33. Murdock v. Pennsylvania, 319 U.S. 105 (1943).
34. Cf. Widmar v. Vincent, 454 U.S. 263 (1981) (holding that a state university could
not bar a student religious group from using its property for religious worship or teaching,
under the view that such groups deserve "equal access" to university facilities).
35. 406 U.S. 205, 234 (1972).
36. For some idea of the complexity of the unemployment benefit cases, try to follow
the reasoning and limitations in Employment Division v. Smith, 485 U.S. 660 (1988);
Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987); Thomas v. Review
Board, 450 U.S. 707 (1981); and Sherbert v. Verner, 374 U.S. 398 (1963).
37. The Court has declined to extend the special status of the Old Order Amish to an
exemption from social security taxes of general application. See United States v. Lee,
455 U.S. 252 (1982); see also Jimmy Swaggart Ministries v. Board of Equalization, 493
U.S. 378, 384-92 (1990) (declining to exempt sales of religious materials from state sales
tax); Bob Jones Univ. v. United States, 461 U.S. 574, 602-04 (1983) (holding that schools
with racially discriminatory standards based on religious beliefs do not qualify as taxexempt organizations).
1992]
9
FREE SPEECH PROTECTION
happily with the matter of unemployment benefits for those
refusing work for religious reasons. Dicta in the Court's most
recent case on the subject, Frazee v. Illinois Department of
Employment Security, 9 suggest a balancing test under which, if
40
the claims are too costly, the result might go the other way.
The Justices in Frazee were at pains to note that matters might
be different if, because of religious objections to employment,
"Sunday shopping, or Sunday sporting, for that matter, w[ould]
grind to a halt." 41 On its face, this might simply be a concern
about the slippery slope. At some level, however, the hypotheticals suggest a dissatisfaction with the rule itself.
Beyond the Amish and unemployment benefits, Free Exercise
claims for un-speech-like religious activities are almost routinely
denied on the ground that they conflict with important (and not,
in all cases, compelling) state interests. Thus neutral state policies
have overridden religious claims of rights to engage in polygamy, 42 to use drugs43 or snakes 44 in religious ceremonies, to wear
religious headgear while on active military duty, 45 to attend
services mandated by one's religion while in prison,46 and to
refuse to obtain a social security number for one's child.47 One
might respond that the state interests at stake in these cases
are unusually weighty, and one might be right, but is it really
so obvious that the state's interest in requiring social security
numbers is weightier than its interest in avoiding desecration of
its flag? Besides, even if the state interests do appear sufficient
in every case, it is, shall we say, a peculiar coincidence that the
moment at which the interests become compelling is the moment
at which the individual claim ceases to resemble speech.
38. See, e.g., EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1281-82 (9th Cir.
1982) (declaring Free Exercise Clause does not exempt religious organizations from Title
VII); South Ridge Baptist Church v. Industrial Comm'n, 676 F. Supp. 799, 804-08 (SD.
Ohio 1987) (rejecting claim that forcing contribution to workers' compensation fund makes
church subservient to the state and is therefore unconstitutional under the Free Exercise
Clause), affd, 911 F.2d 1203 (6th Cir. 1990); ef Mozert v. Hawkins County Bd. of Educ.,
827 F.2d 1058, 1067 (6th Cir. 1987) (declining to extend scope of Yoder), cert. deied, 484
U.S. 1066 (1988).
39. 489 U.S. 829 (1989).
40. Id. at 835.
41. Id.
42. Reynolds v. United States, 98 U.S. 145, 166-67 (1878).
43. See Employment Div. v. Smith, 110 S. Ct. 1595, 1606 (1990).
44. State v. Massey, 51 S.E.2d 179, 180 (N.C. 1949); State ex rel. Swann v. Pack, 527
S.W.2d 99, 107-11 (Tenn. 1975), cert. denied, 424 U.S. 954 (1976).
45. Goldman v. Weinberger, 475 U.S. 503, 509-10 (1986).
46. Cruz v. Beto, 405 U.S. 319, 322 (1972).
47. Bowen v. Roy, 476 U.S. 693, 707-12 (1986).
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B. The Free Press Clause
The 1970's, perhaps because of the brouhaha over the Pentagon
Papers case, 8 saw a great flurry of scholarly attention to the
question of whether the Free Press Clause adds anything to the
Free Speech Clause. 49 The courts have long since made clear that
the answer is no-the rejection of the claim for a special right
of access to the news took care of that question.w0 Commentators
have accommodated themselves to this result by proposing that
the Free Speech and Free Press Clauses be thought of as unitary,
a single expressive right created by two joined clauses. In short,
if you can say it, you can publish it, and if you can publish it,
you can say it. If you can be kept from doing one, however, you
can be kept from doing the other, which implies that the trial
court in United States v. The Progressive, Inc., 51 which issued an
injunction, later dissolved, to prevent the publication of an article
about the construction of the hydrogen bomb, should have been
equally willing to enjoin the teaching of the same material in a
college classroom. If that concept seems ridiculous, then either
the case is wrongly decided and the first injunction should never
have issued, or the theory of the unitary clause does not work
because the press is treated worse than other speakers.
C. Freedom to Petition
If you can say it and you can print it, one might suppose that
you could tell the government about it, because this is the point
of the Petition Clause. However, what might seem on its face to
be a vital provision of the First Amendment turns out, on closer
inspection, to contain no substantive content that is not already
covered by the Free Speech Clause. True, the idea of a Petition
Clause with independent content flowered briefly as the Supreme
Court fashioned the Noerr-Penningtonexception to the antitrust
laws, allowing corporations otherwise prohibited from cooperating to work together to seek government action. 52
48. New York Times Co. v. United States, 403 U.S. 713 (1971).
49. See, e.g., Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am.
B. FOUND. RES. J. 521; David Lange, The Speech and Press Clauses, 23 UCLA L. REv. 77
(1975); Potter Stewart, "Or of the Press", 26 HASTINGs L.J. 631 (1975).
50. See Houchins v. KQED, Inc., 438 U.S. 1 (1978); Pell v. Procunier, 417 U.S. 817 (1974);
Branzburg v. Hayes, 408 U.S. 665 (1972).
51. 467 F. Supp. 990 (W.D. Wis.), appeal dismissed, 610 F.2d 819 (7th Cir. 1979).
52. See United Mine Workers v. Pennington, 381 U.S. 657, 669 (1965); Eastern R.R.
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136 (1961).
1992]
FREE SPEECH PROTECTION
Since those halcyon days, however, the Petition Clause has
virtually dropped out of the First Amendment. This point is
nowhere better illustrated than in McDonald v. Smith, 3 a libel
case in which a unanimous Supreme Court ruled that a comment
included in a petition to the government (in this case, a letter to
the President and the Attorney General) enjoys no greater protection than it would enjoy by virtue of the Free Speech Clause
alone.6
The Court rejected the possibility that a petition to the government might be privileged from a libel action, thereby excluding the attractive republican or communitarian vision of free
communication between citizens and their government. 5 5 Such an
enhancement of speech rights because of the nature of the recipient-the government-might seem anathema to a supporter of
the trend of treating all First Amendment activity as deserving
the same level of constitutional protection. It is worth noting,
however, that an analogous privilege is already in place: in most
situations, the pleadings that one files in a lawsuit, or the testimony that one gives on the stand, are privileged, and treated as
superior to other forms of speech, even if, in other circumstances,
they would be libelous. The only explanation for the privilege is
that the desired communication from ordinary citizens to the
courts of law would be discouraged if parties or witnesses feared
a libel lawyer lurking nearby. That is not a bad argument, but
the Supreme Court in McDonald mysteriously rejected it for
citizens' communications to other branches of the government.5 6
IV.
THE
REDUCTION TO SPEECH
Despite what my professor told me my first year at Yale, not
everything is speech, and not everything should be treated as
speech. Yet the drive really does seem relentless: we are well
on our way to a world in which religious worship and petitioning
the government for redress are "just" speech. Although, as I
indicated, I have not done the history in detail, k' would be
surprised to discover that this is, in fact, what the Founders
anticipated; if they wanted only to protect speech and things
53. 472 U.S. 479 (1985).
54. Id. at 485.
55. Id.
56. Id.
886
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just like it, they could have written a much shorter First Amendment.
So why this reduction of all First Amendment rights to speech
rights? Paradoxically, I would venture to suggest that this reduction, this leveling, is linked to the same cause that perhaps
brought about the expansion in the sorts of acts that are understood as speech-the growth of federal power and, with it, the
evolution of the idea of national citizenship. The link, however,
is not as coherent as it might be, and we might label it, for lack
of a better term, ideological: both sets of cases, those on expansion and those on reduction, reflect an effort (whether or not
intended) to align expressive rights and thereby align the people
in their relationship to the government, especially, but not exclusively, to the national government.
Those we might think of as members of the reasoning classthe readers of this law review, for instance-share a conceit that
liberal democracy requires a public dialogue in order to work.
One can view the progressive expansion in the acts that count
as speech and the simultaneous reduction in the scope of other
First Amendment rights until they equal speech, as an effort to
bring order to the dialogue and to put every participant, as it
were, on an even footing. Thus, no citizen. is allowed claims of
special privilege-an appeal to religious faith, for instance, or to
the unique estate of the press-but must make arguments on
the same terms and in the same language as everyone else. 57
This project might be viewed as replacing another failed assumption that undergirded state sovereignty in the original planthe assumption that the communities of governance would be
comprised of relatively homogenous individuals. Perhaps the
Framers of the Constitution felt comfortable strictly curtailing
the power of the Congress to regulate speech while consciously
allowing the states to regulate freely because they supposed that
each state was run by a relatively small group of essentially
similar people who were unlikely to wreak oppressive horrors on
each other-that is, on others like themselves.58 The founding
period had its reasoning class too, and the members were sub-
57. For critiques of this approach, see MICHAEL J. PERRY, MORALITY, POLITICS, AND
LAW: A BICENTENNIAL ESSAY 72-73 (1988) and Michael J. Perry, Neutral Politics?, 51 REV.
POL. 479 (1989).
58. Cf. LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 16 (1985) (noting that Colonial
Americans held extraordinarily diverse opinions on religion, politics, social structure, and
other vital subjects, but every community had its own orthodoxy and eagerly banished
or extralegally punished unwelcome dissidents).
1992]
FREE SPEECH PROTECTION
stantially aligned in their position before their governments, both
local and national. That situation could hardly continue, and after
the Civil War, the Industrial Revolution, and the rise of fascism
in Europe, the matter of the position of citizens before their
governments became sharply discontinuous with the original as59
sumptions. It is, I suspect, no accident that Terminiello v. Chicago
was decided after World War II, or that the right to freedom of
association was not discovered to have teeth until the civil rights
6
movement needed it. 0
These newly developing rights are useful to democracy, and
one can hardly condemn them. Yet, there is something frightening
in this project of alignment-this effort, in effect, to replace the
local communities of governance envisioned by the Founders with
a national community in which all will participate in the dialogue
in the same way because the state is free to forbid other ways.
Elsewhere, I have suggested that the use of the Establishment
Clause as a cudgel to restrict the permissible arguments in public
debate is particularly disturbing, and its forceful separation of
the permissible self from the permissible argument is terribly
frightening.6 1 This destruction of the public aspect of the religious
self, however, may be a small part of the larger and perhaps
unintended project that I have described, the homogenization of
the voices in which debate is made, creating a national community
in which all speech is of only one kind.
V.
THE FIRST AMENDMENT AS SWORD
The project of repairing the bonds of community by limiting
the range of dissenting voices does not rely entirely on the
existence of a state interest adequate to justify the control of
speech. Sometimes the Free Speech Clause is used the opposite
way, not as shield but as sword-not as a means for protecting
one's own speech directly, but as a weapon to restrict the speech
of others. For example, regulation of what is sometimes called
59. 337 U.S. 1, 4 (1949) (striking down restrictions on free speech unless such speech
is "likely to produce a clear and present danger of a serious substantive evil that rises
far above public inconvenience, annoyance, or unrest").
60. See NAACP v. Button, 371 U.S. 415 (1963) (upholding petitioner's right of association
for the purpose of challenging racial discrimination).
61. See Stephen L. Carter, Evolutionism, Creationism,and TreatingReligion as a Hobby,
1987 DuKE L.J. 977 [hereinafter Carter, Evolutionism]; Stephen L. Carter, The Inaugural
Development Fund Lectures: Scientific Liberalism, Scientistic Law, 69 OR. L. REv. 495
(1990).
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[Vol. 33:871
"hate speech" is sometimes supported by the claim that if members of historically disadvantaged groups are subjected to namecalling and harassment, their own ability to speak-to participate
in public debate within the community-will be compromised and
perhaps destroyed. The racist speech that some would like to
regulate is thus described as a method of silencing. Consequently,
so the argument runs, because the state cannot absolutely protect
both the speech rights of the harasser and the speech rights of
the harassed, it must make a choice. The balance, it is said,
should be struck in favor of the member of the putatively op62
pressed group.
In a similar vein, Mark Yudof argued a few years back that
the First Amendment rights of citizens to free and open debate
might be used as a device to restrict the speech of the government.6 The theory is that when the government speaks, it often
does so with a force and authority that swamps dissenting voices,
thus stifling debate on the issue in question." Government speech
is held to be coercive, or at least opinion-shaping, in a way that
private speech is not. Consequently, in order to protect the robust
public debate that the First Amendment is said to contemplate,
the free speech rights of government officials must necessarily
be limited.
These arguments about free speech as a shield, stunning though
they must seem to orthodox First Amendment theorists, have
the peculiar virtue of equalizing the status of the clauses of the
First Amendment by reducing the protection of speech to something more akin to the already reduced status of protection of
religion and, in a different sense, protection of the press.
They equalize treatment in two ways, one of which relates
only to the religion clauses, the other of which relates to both
the Free Press and Free Exercise Clauses. The similarity to the
religion clauses comes because the anti-hate-speech and antigovernment-speech theories both create what is in effect an
Establishment Clause within the hitherto sacrosanct territory of
free speech. The notion of restricting government speech because
it inhibits the free speech of others neatly tracks the theory that
holds the Establishment Clause to be a vehicle for free exercise,
62. See, e.g., Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist
Speech on Campus, 1990 DUKE L.J. 431; Catharine A. MacKinnon, Pornography, Civil
Rights, and Speech, 20 HARV. C.R.-C.L. L. REv. 1 (1985).
63. MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT
EXPRESSION IN AMERICA 157 (1983).
64. See id. at 156-57.
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FREE SPEECH PROTECTION
that is, that the reason the government cannot establish a church
is that such a move would be anticompetitive. 65 The banning of
hate speech because it interferes with the freedom of others to
speak is akin to the traditional theory that the reason for the
Establishment Clause is to protect religious pluralism by shielding marginal and unpopular religious faiths against a more powerful and sometimes malevolent religious mainstream -although,
to be sure, the anti-hate-speech rules regulate private, not official,
speech and speech-acts.
The Free-Speech-Clause-as-sword theories further import an
element that is common to jurisprudence under both the Free
Exercise and Free Press Clauses but, until recently, was less
common in garden variety free speech cases. That element is the
idea of balancing-that one weighs the infringement on the
protected right against the importance of the government interest at stake in order to decide the case. Balancing tests are not
entirely foreign to free speech cases, but the balances have
generally worked out in ways that make restrictions on speech
quite difficult to maintain. In free press cases, too, the balance
is usually struck in favor of the press, but the counterexamples,
such as United States v. Progressive,Inc.,6 are rather spectacular.
In free exercise cases, as I have already suggested, the government does not have to show much of an interest as long as the
effect on religious exercise is unintended, perhaps because reli67
gion is not considered very important.
The implicit leveling in the Free-Speech-Clause-as-shield theories that I discussed earlier suggests that free speech is not very
important either; certainly it turns out to be less important than
many other values. To many of those who are struggling to
preserve or recapture the ideal of community, this is probably
true. For increasing numbers of people, legal theorists, politicians,
and lay citizens alike, the more important value is the re-creation
of the moral bonds that marked the homogeneous communities
in which the Founders expected their First Amendment to function. That project, too, involves response to the collapse of one
of the original assumptions.
65. Cf. Michael W. McConnell & Richard A. Posner, An Economic Approach to Issues
of Religious Freedom, 56 U. CHI. L. REv. 1 (1989) (concluding that religion is a market
with too many ties to governmentally regulated markets to permit complete separation
from the state).
66. 467 F. Supp. 990 (W.D. Wis.) (enjoining a magazine from publishing an article
describing how to manufacture a hydrogen bomb), appeal dismissed, 610 F.2d 819 (7th
Cir. 1979).
67. See supra text accompanying notes 32-47.
WILLIAM AND MARY LAW REVIEW
VI.
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THE COMMUNITY CONTROL MODEL
If I am right, all of this suggests a future in which the Free
Expression model of the First Amendment slowly loses its dominance and is replaced, perhaps by popular demand, by the
Community Control model. The Community Control model, long
at work in the obscenity cases, holds that communities must be
left free to express their jointly held values, even if this sometimes has the effect of preventing other people from expressing
their singularly held values.
Even after two decades, the classic statement of the Community Control model remains the one proferred by Chief Justice
Burger in Miller v. California,8 the case that currently defines
the constitutional law of obscenity:
Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from
community to community, but this does not mean that there
are, or should or can be, fixed, uniform national standards of
precisely what appeals to the "prurient interest" or is "patently
offensive." These are essentially questions of fact, and our
Nation is simply too big and too diverse for this Court to
reasonably expect that such standards could be articulated for
all 50 States in a single formulation, even assuming the prerequisite consensus exists ...
It is neither realistic nor constitutionally sound to read the
First Amendment as requiring that the people of Maine or
Mississippi accept public depiction of conduct found tolerable
in Las Vegas, or New York City. 9
As a law of obscenity, this might seem unwieldy; in fact, it has
worked reasonably well, if what matters is practicality. For all
of its line-drawing problems, the Community Control model is an
effort to respond to the sense of moral collapse that accompanies
an unfettered freedom to speak. In a nation in which fascism,
racist murder, sex with children, and rape are all freely advocated
(often as important parts of popular culture), it is not unreasonable to suppose that something has gone badly wrong. It is all
very well to talk endlessly about the need to defend free speech
to the utmost precisely when the speech in question is most
threatening, but that is a philosophy that often must seem best
suited to a warm, secure classroom and a world in which threatening speech-acts are few. As the frightening speech-acts in68. 413 U.S. 15 (1973).
69. Id. at 30, 32 (citation omitted).
1992]
FREE SPEECH PROTECTION
crease, however, the community begins to sense that something
is amiss.
The so-called republican revival in legal and political scholarship reflects the notion that the moral, and perhaps conversational, bonds of community matter and are, perhaps, a part of
the democratic ideal that has been forgotten.70 However, the calls
for attention to the republican heritage (which, as we tend to
forget, was horribly oppressive, at least for those who were not
white male property owners) does not quite strike at the heart
of the move toward the Community Control model and the fear
of something amiss. What is amiss may be (or seem to be) that
the community has become too heterogeneous: the reason that
so many outrageous ideas are being discussed is, quite simply,
that there are too many people of too many different backgrounds
all pretending to be a single community in the sense that the
Framers of the First Amendment must have envisioned. Perhaps,
in such a community, the Amendment does not work quite as it
was supposed to. Yes, it protects all voices, but in a more
heterogeneous community, the different voices might seem cacophonous, so that suddenly there is no debate, but only noise.
The way that the worried community escapes this difficulty,
then, is to regulate. The point of the regulation is to reestablish
community, essentially by legislating away some of the more
troubling voices-even, sometimes, the voice of the majority.7'1
This, I think, is what is really at issue in the cases on the
teaching of scientific creationism in the schools.7 2 The worried
parents want to see their children's schools reflect their worldview instead of someone else's. They want to preserve their
sense of community, a sense engendered in part through their
shared religious faith. Their chosen method is to regulate the
curriculum to prevent the expression of ideas that they think
70. Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Cass R. Sunstein,
Beyond the Republican Revival, 97 YALE L.J. 1539 (1988).
71. Short of regulation, the worried community might also try to drown out the
objectionable voices, through concerted speech or through government speech. The
possibility that the government's ability to speak might drown opposing voices motivated
Mark Yudof's very interesting book, When Government Speaks: Politics, Law, and Government Expression in America. YUDOF, supra note 63. Yudof calls for use of the First
Amendment as a shield against some government speech, particularly when the government's message is likely to drown the competition. This notion, of course, runs directly
counter to the Community Control model. For my general reaction to Yudofs thesis, see
Carter, supra note 26.
72. See Edwards v. Aguillard, 482 U.S. 578 (1987); McLean v. Arkansas, 529 F. Supp.
1255 (E.D. Ark. 1982).
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will destroy the community that they are struggling to preserve.7 3
Mozert v. Hawkins County Board of Education74 involved a
similar situation. Unable to restrict the curriculum directly, parents tried to restrict the books that would be available to their
children.75 Their motive must have been exactly the same, the
preservation of their homogeneous community from the cacophony of voices thought to pose a threat to its survival.
The efforts to prosecute the exhibitors of the Mapplethorpe
exhibit and the rap group 2 Live Crew might be explained in a
similar fashion. 76 So might the antipornography ordinance struck
down by the Seventh Circuit in the case of American Booksellers
Ass'n v. Hudnu 77 and the anti-hate-speech and antiharassment
rules many colleges have adopted. 7 8 All of these cases involve
efforts to substitute local for national judgment on the issue of
what counts as the sort of speech in which a public-spirited
citizen ought to engage-the effort, in short, to re-create the
community of relatively homogeneous ideas that the Founders
probably anticipated.
In the particular matter of the antiharassment rules, supporters often describe the issue as involving the question of which
stands higher in the hierarchy, the commitment to expressive
freedom or the commitment to equality. That is a weighty question indeed; for my purposes, however, the rules are better
viewed as instances of the community deciding what must be
prohibited in order for the community itself to survive. This view
suggests the importance of venue: the antiharassment rules exist
principally on college campuses. Now that the campuses are more
fully integrated, the preservation of the campus community might,
in this vision, require an attitude of tolerance and respect toward
fellow students that hate speech and harassment do not display.
Consequently, the best analogue to the antiharassment rules
might actually be the scientific creationism statutes.
73. For an elucidation of this proposition, see Carter, Evolutionism, supra note 61, at
981-82 (noting that a Christian fundamentalist may consider a so-called neutral curriculum
to in fact constitute a challenge to his or her most deeply held beliefs).
74. 827 F.2d 1058 (6th Cir. 1987).
75. Id. at 1062.
76. See Owen M. Fiss, State Activism and State Censorship, 100 YALE L.J. 2087 (1991).
77. 771 F.2d 323 (7th Cir. 1985), affd, 475 U.S. 1001 (1986). For a critical commentary
on the Hudnut case, see CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE
STATE 213 (1989).
78. For more detail on my view of the anti-hate-speech rules, see STEPHEN L. CARTER,
REFLECTIONS OF AN AFFIRMATIVE ACTION BABY ch. 8 (1991).
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FREE SPEECH PROTECTION
Recent evidence suggests that the Supreme Court is turning
in the direction of the Community Control model, although the
Justices seem to be refusing to choose between the local and
national models of what forms of dialogue are appropriate for
the public-spirited citizen. Two cases from the 1990-1991 Term
exemplify the Community Control approach. First, in a case much
of the public missed, Barnes v. Glen Theatre, Inc.,79 the Justices
concluded that local communities, just as they have the power
to ban what they consider obscene, may also forbid nude dancing
that is not obscene. 80 In Rust v. Sullivan,81 the Justices determined
that the federal government has the power to prohibit family
planning clinics that receive federal funds from discussing the
82
option of abortion with their clients.
Both cases have been thunderously condemned as infringing
upon First Amendment rights, and it is true that they are at
sharp variance with the precedents. However, the nude dancing
case, and, to a lesser extent, Rust, seem entirely consistent with
the view that the First Amendment is designed to allow debate
in relatively homogeneous moral and political communities rather
than to ensure that all voices are heard.
VII.
CONCLUSION
Where all of this will lead, of course, I do not know. I suspect,
however, that as federal authority continues to become more
intrusive and the bonds of community continue to weaken, we
will see cries for more categories of protected speech side-byside with calls for more authority in the community to redress
the symptoms-and that is all speech is, a symptom-of the
collapse of the moral homogeneity of the local governing community.
If moral disintegration is indeed progressing, the push away
from the Free Expression model toward the Community Control
model might prove irresistible. The desire to return to relatively
homogeneous communities cuts across political lines: one can
hardly identify it as left or right. Instead, it is a desire among
all people of strong commitments to live in communities in which
those commitments are valued rather than attacked at every
turn. After all, a sharp experiential difference exists between
79.
80.
81.
82.
111 S. Ct. 2456 (1991).
Id. at 2461.
111 S. Ct. 1759 (1991).
Id. at 1772.
WILLIAM AND MARY LAW REVIEW
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giving occasional ear to a dissenting voice and hearing the sounds
of angry disagreement or rejection all the time.
Still, the trouble with the Community Control model remains
the trouble for all communitarian models of law or politics: it
leaves little space for the dissenter, the individual valued in
liberal theory, who must adhere to the community's line, even
on the matter of how a public-spirited citizen should conduct
debate, or else cease to participate in governance. The dissenter
is asked, in effect, to hide a portion of the self from public view.
Whether the self that is split off from the public persona is
deeply religious, deeply racist, or deeply risqu6, he or she is still
a human being that the community wants to isolate. One might
suppose that the Constitution exists to prevent the community
from squelching the dissenter who is thought to spew forth the
rhetoric of moral evil, but under the Community Control model,
one would be wrong.
The growing ascendancy of the Community Control model
poses an important challenge to First Amendment absolutists as
well as to those somebody once called the "almost-abs"-theorists
who will allow regulation of some very carefully delineated circle
of speech or speech-acts based on only the most compelling
justifications. The Free Expression model may not survive the
upsurge in public desire to regulate speech. True, it has always
survived in the past, but sometimes only after a long period of
constitutional hibernation. It may be that the newest period of
hibernation is about to begin, and the only weapon available to
fight the new surge of community control might in the end be
an appeal to a community that refuses to listen or appeal to a
court system that no longer seems to care.